[Federal Register Volume 74, Number 121 (Thursday, June 25, 2009)]
[Notices]
[Pages 30318-30319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15000]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement


Failure to Demonstrate Valid Existing Rights for Land Within the 
Daniel Boone National Forest

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Notice of decision.

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SUMMARY: This notice announces our decision on a request for a 
determination of valid existing rights (VER) under section 522(e) of 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the 
Act). We (OSM) have determined that, based upon the information 
provided, the applicant has not demonstrated the existence of VER on 
the Jack Smith, et al. property within the boundaries of the Daniel 
Boone National Forest in Clay County, Kentucky.

DATES: Effective Date: June 25, 2009.

FOR FURTHER INFORMATION CONTACT: Joseph L. Blackburn, Director, 
Lexington Field Office, 2675 Regency Road, Lexington, Kentucky 40503.
     Telephone: (859) 260-3903. Fax: (859) 260-8410.
     E-mail: [email protected].

SUPPLEMENTARY INFORMATION: 
I. What Is the Nature of the VER Determination Request?
II. What Legal Requirements Apply to This Request?
III. What Information Is Available Relevant to the Basis for the 
Request?
IV. How We Processed the Request.
V. How We Made Our Decision.
VI. How Can I Appeal the Determination?
VII. Where Are the Records of This Determination Available?

I. What Is the Nature of the VER Determination Request?

    On July 15, 2008, David Altizer submitted a request on behalf of 
Jack Smith, Jerry Smith and Leovie Smith, for a determination of VER to 
conduct surface coal mining operations on approximately 238 acres of 
land owned by the U.S. Forest Service within the Daniel Boone National 
Forest in Clay County, Kentucky.

II. What Legal Requirements Apply to This Request?

    Section 522(e)(2) of SMCRA, 30 U.S.C. 1272(e)(2), prohibits surface 
coal mining operations on Federal lands within the boundaries of any 
national forest, with two exceptions. The first exception pertains to 
surface operations and impacts incidental to an underground coal mine. 
The second

[[Page 30319]]

relates to surface operations on lands within national forests west of 
the 100th meridian. Neither of those exceptions applies to the request 
now under consideration.
    The introductory paragraph of section 522(e) also provides two 
general exceptions to the prohibitions on surface coal mining 
operations in that section. Those exceptions apply to operations in 
existence on the date of enactment of the Act (August 3, 1977) and to 
land for which a person has VER. SMCRA does not define VER. We 
subsequently adopted regulations defining VER and clarifying that, for 
lands that come under the protection of 30 CFR 761.11 and section 
522(e) after the date of enactment of SMCRA, the applicable date is the 
date that the lands came under protection, not August 3, 1977.
    On December 17, 1999 (64 FR 70766-70838), we adopted a revised 
definition of VER, established a process for submission and review of 
requests for VER determinations, and otherwise modified the regulations 
implementing section 522(e). At 30 CFR 761.16(a), we published a table 
clarifying which agency (OSM or the State regulatory authority) is 
responsible for making VER determinations and which definition (State 
or Federal) will apply. That table specifies that OSM is responsible 
for VER determinations for Federal lands within national forests and 
that the Federal VER definition in 30 CFR 761.5 applies to those 
determinations.
    At 30 CFR 761.16(b) we published the information needed for OSM to 
make a determination of VER, which includes information required to 
demonstrate the ``good faith/all permits'' standard in accordance with 
30 CFR 761.16(b)(2) or the ``needed for and adjacent'' standard in 
accordance with 761.16(b)(3).

III. What Information Is Available Relevant to the Basis for the 
Request?

    The request included a Property Rights Demonstration, as required 
by 30 CFR 761.16 (b)(1) pursuant to the definition at 30 CFR 761.5. 
Included were two deed conveyances referenced in the Property Rights 
Demonstration, containing a legal description of the land owned by the 
petitioner that is the subject of the request, and the subsequent 
severance of the surface and mineral estates.

IV. How We Processed the Request

    We received the request on July 18, 2008, through a letter dated 
July 15, 2008, submitted by David Altizer on behalf of Jack Smith et 
al. The request did not include all of the information required for the 
``good faith/all permits'' standard in accordance with 30 CFR 
761.16(b)(2) or the ``needed for and adjacent'' standard in accordance 
with 30 CFR 761.16(b)(3). Therefore, we determined that the request was 
not administratively complete. Because the request was not 
administratively complete, our review did not include an assessment of 
the technical or legal adequacy of the materials submitted with the 
request.
    In a letter dated August 13, 2008, we informed the requester that 
the information submitted was incomplete. As required by 30 CFR 
761.16(c)(2), we provided an additional 30 days within which to submit 
the required information. No additional information was submitted by 
the requester.

V. How We Made Our Decision

    Because we did not receive any further information in support of 
the request, and we did not receive a request for an extension of time 
within which to submit additional information, the request remains 
incomplete and cannot be processed. In such a situation, our 
regulations at 30 CFR 761.16(e)(4) require us to issue a determination 
that an applicant has not demonstrated VER. This determination is made 
without prejudice therefore the requester may submit a revised request 
with the appropriate information at any time.

VI. How Can I Appeal the Determination?

    Our determination that the applicant has not demonstrated VER is 
subject to administrative and judicial review under the Federal 
regulations at 30 CFR 775.11 and 775.13.

VII. Where Are the Records of This Determination Available?

    Our records on this determination are available for your inspection 
at the Lexington Field Office at the location listed under FOR FURTHER 
INFORMATION CONTACT.

    Dated: April 23, 2009.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. E9-15000 Filed 6-24-09; 8:45 am]
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